The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1887-05-03


two years upon any person not hay
ing license or who shall sell or fur
nish opium, etc, to any person or
persons oaatnzry % lGsc. and it therefore
follows thst this penalty may be in
dlcted upon any person licensed or
authorized 70 sell or furnish opium,
whether under this Law or any OF those
previously mentioned. who shall not
comply IN all respects with, or sell
contrary TO the terms of those laws.
Section I OF the Act IN question
prescrbeS the same penalty Tor any
person who shall have possession OF
any opium contrary TO the provisions
OF Section 8, but IS that Section does
not impose any duty upon the pur-
chaser the decision arrived ST N the
case Of W1Husy Brt.a must be followed.
and It must be declared that no pun
ishment for the mere possession Of
opium can be inflicted under that
Section.
We have now 10 consider whether
having opium IN possession. Is an Of
tense under the law as amended By
the Act No XVIII Of 1881.
This Is the only law which makes
the possession Of opium an ofenSe,
aHd the possession necessary for q
conviction must be contrary TO the
terms OF Section 5 Of that Act. herein
before set out.
Now does the Act Of 1856 conflict
with this Section?
In constituting this Act we must take
into consideration the intention OF the
Legislature SO far as such intention
can be gathered IRON the text Of the
Act itself, and must give effect TO the
Act II possible.
The Legislature has attempted 70
deal with. and prescribe 8 punishment
for persons, having opium N their
possession, but as we have already
stated. have not done 50 effectively.
II may be the effect OF previous legls
lation was not IN the minds Of the
legislative body, but we cannot as
sumo this On the contrary we must
assume that Il was converssnt with
the whole law upon which they were
legislating, and Il sppears 10 Us that
they intended 10 remove some OF the
restrictions affecting the dealing with
the drug IN question, and 70 that ex-
tent the law would seem 70 be et-
eetuaL for II undoubtedly enables per
sons prohibited by former laws, TO sell
this drug
By attempting 10 prescribe 3 pen
atty for having possession OF opium.
under-eertair circumstances the Leg
islature has shown It's intention 10
deal with the subject. and II has failed
II It's attempt
We can only give effect 70 such N
tenIiOn. by adding after Section : Of
this Act IN Section 3 Of the law Of
1874 the words from Z person duly
licensed as aforesaid or some similar
words, but whiSh would materially
alter the ofense described, and would
N fact be legislating instead OF COZ
strung.
The part Of the Act Of 1874 dealing
with the matter Of the possession Of
opium Is IN conflict with that part OF
the Act OF 1856 which refers TO the
same slbiect and i to this extent re
peal q Section II Of the Act Of
ISS62 buacts that al laws and parts Of
law G5cLsunfict with the provisions Of
thiSses shah be and the same are
hero repealed
YES 2, these circumstances We nave,
and We do 50 with much regret. TO say
that the mere possession Of opium :
not an OffenSe punishable bv Gny law
now N force.
However. whether Z person having
opium n possession could not prop
erly De charged and convicted OF
smuggling the same, Is another ques-
ton, and one that the Court VIII have
10 consider when Il i raised
The first point made on this appeal
: that the Crown has not proved It's
charge Of unlawful possession OF opI
UNI
On the authority OF Briggs vs.
Briggs, 1 HGw. rs, We hold that
whether there L any evidence 70 sus-
tain The judgment, l. G question OF
law, but the Court n such case vii
examine the evidence only 50 far Is
70 ascertain whether or not there Is
eTidsnce to sustain the Judgment We
are not 20 consider the question
whether the charge Of unlawful pos
session Of opium was fully proven a.
the appeal / limited To the points OF
law taken. Finding from papers sent
I'D, evidence that the defendant had
possession Of opium we enquire no
further and o7errule this point
The secuz6 point has already been
considered fully
The third point. that the Act Of 1856
entitled An Act tG regulate the IN
portstiQ1 and sale Of opium L N
constitutional and therefore void and
Of 10 effect. remains 70 be considered
The nth Article OF the Constitution
Il cited a. being euutrsveued by this
law Il reads 10 avoid improper